The Human Rights Association has declared several claims: Turkey has problems about democratization and human rights, which are based on the Constitution; the 1982 Constitution in effect does not contain fundamental principles of ‘Constitutionalism’ as a product of coup d’état, which grounds on prohibition – not freedom -. Upon all claims we make so far, the IHD believes in need of establishment of a new constitution.
The fundamental principles that are, we believe, sine qua non for a new civil and democratic Constitution:
“By ending official ideology and saving the Constitution from the ideological context, it must contain establishment of a common future in peace with all parts of the society living in this country,
Full correspondence to the Democracy’s basic principles of pluralism, transparency and participation,
Through installing principle of the rule of law, reconstituting the judiciary considering this principle and ensuring full implementation of the right to a fair trial,
Grounding on commitment to the human rights and fully implementing international human rights law for individuals and groups,
Recognizing the rights of peoples or groups in bases of ethnic, religion and culture in accordance with the international human rights law,
Guaranteeing everyone’s individual, political, economic, social and cultural rights along with ensuring individuals’ and groups’ solidarity rights, starting with the right to live in a healthy environment.
Guaranteeing everyone’s freedom of association within the sense of social state, especially including employees’ trade union rights, collective bargaining rights and right to strike,
Advancing gender equality and women’s human rights and equalizing genders in practice.”
We have evaluated about the Bill of Law on Change Several Articles of the Constitution opened to public opinion poll from the AK Party on 22nd of March 2010.
In pronouncements of authorities of the AK Party, they claim to actually aim converting this change proposal of the Constitution to materialize a ‘judicial reform’.
As we stated above, by reconstituting the rule of law, the reconstitution of the judiciary regarding the rule of law and securing the right to a fair trial are the principles that we advocate.
Turkey seemed to have many years for realizing the rule of law in practice. This problem has several reasons:
1- Ideological attitudes and behaviors that linked to the 1982 Constitution, seen especially in the appellate courts, the supreme courts and the special competent high penal courts.
2- Politicization tendencies in jurisdiction caused by structure of the Supreme Council of Judges and Public Prosecutors and problems caused by guardianship of the Ministry of Justice.
3- Absence of union of jurisdiction. The jurisdiction in Turkey separated in two parts as military and civil jurisdiction. Each jurisdiction has its own court of appeal. The Civil Jurisdiction is divided into two parts because of the existence of the special competent High Penal Courts. It is impossible to access to justice in such environment built for wartimes.
4- Lack of existence of independence and impartiality of judges. Along with situations mentioned at the previous articles, this is a reflection of not being a democratic state of law.
5- Non-existence of judge guardianship in terms of giving decisions in trials independently.
6- We can also count all the conditions (lack of existence of enough judges and public prosecutors, physical accommodation problems, work load density, etc.) that deactivate the jurisdiction.
In order to reach the union of jurisdiction, all the military courts must be closed starting from the Military Supreme Courts of Appeal and the High Military Administrative Court; just the military disciplinary courts should be given permission to continue. The CCP (the Code of Criminal Procedure) 250-251-252 must be abolished; the implementations of the special competent prosecutors and supreme courts must be ended.
The system of the Supreme Council of Judges and Public Prosecutors must be abolished for the judge’s independence and assurance; a new SCJPP must be established by participations of only public prosecutors and lawyers. The guardianship of the Ministry of Justice must be concluded.
In order to dissolve the ideological attitudes of which source in the jurisdiction is based on the Constitution; especially the very beginning part of the Constitution totally must be changed. The rights of different ethnic, religion and language groups must be guaranteed. In order to ensure this, the jurisdiction must be redefined as a reassurance of everyone’s and every groups’ rights.
EVALUATION ON THE PROPOSAL TO CHANGE THE CONSTITUTION
For realizing a jurisdiction reform in minimum, the Proposal must contain three subjects:
A) The President’s intervention over the jurisdiction must be concluded through ending appointment to high jurisdiction organs by the President.
B) For elimination of the ideological attitudes (the official ideology) of the high courts, the appellate courts, and the special competent courts (starting with the members of the SCJPP) and for a jurisdiction reform, the very beginning of the Constitution must be changed. Any Constitutional Change Package cannot have any ‘reformist’ qualification if this parts still remains the same. Moreover, spirit of ‘12 September’ exists in the very beginning of the Constitution. If we would not like to live with the spirit of ’12 September’, this is a must to change this part of the Constitution.
C) Implementation of basic rights and freedoms and international regulations by the jurisdiction must be obligatory.
When we check articles of the Proposal;
1- The First Subsection of Constitution’s the Article 10 which is proposed to change must be changed in such way:
“All are equal before the law and are entitled without any discrimination on grounds of language, race, color, religion and sectarian, social statute, health condition, disability, age, gender, philosophic and political point of view, culture, descent or national or ethnic origin or pregnancy ,etc. to equal protection of the law.
The Second Subsection of the Article 10 can remain as it is stated in the Change Proposal.
The Third Subsection of the Article 10 can remain as it is stated in the Change Proposal.
It must be added to the last subsection of the Article 10 that ‘the State shall take all necessary measures in accordance with international norms in order to advance equality and combat against discrimination.”
In order to advance equality and to rewrite bases of anti-discrimination, the Committee of Equality and Anti-Discrimination must be established in accordance with international norms, regarding the fact that Turkey is the party to the ECHR, the UN Twinning Agreement and other UN fundamental agreements. If this Council will be linked to the Constitution, this shall be great source of power regarding works of the Council.
2- By the Change Proposal, the Constitution’s Article 41 is wanted to be changed. At first, in the first subsection of the Article 41, the word ‘Turk’ must be replaced with the word ‘Turkey’. Thus, the pluralism of population of Turkey will be accepted in such way. In this subject, this shall be a further step.
In the Proposal, the third subsection of the Article 41 was not written completely: only the right to establish and maintain direct and personal relation with his/her parents is taken into consideration in terms of the high benefit of the child. Yet, according to the Convention on the Rights of Children: the term of the ‘high benefit of the child’ is more inclusive. About all activities related to children, the high benefit of the child must be taken into consideration. The Third Subsection must be rewritten like this: “every child has right to benefit of being cared and protection and to establish and maintain direct and personal relation with his/her parents. But in all activities related to children made by public or private social welfare institutions, courts, administrative authorities or legislative body, the idea of the high benefit of the child must be used as base. Activities against the high benefit of the child must not be implemented.”
The Forth Subsection is planned to add to the Article 41 by the Proposal. There is an insufficiency in this subsection. In order to prevent abduction of children, the term of ‘Abduction of Children’ must be added into this subsection. In the Article 35 of the Convention of the Rights of Children, it links the abduction of and the sale of or traffic in children to armed conflicts. This topic that mentioned in the Convention must be stated too in the Proposal. By our proposal, it is aimed that the term of the Rights of Children which is added to Article 41 of the Constitution shall be compatible with the Convention on Rights of the Children.
3- In the Constitution in Article 53 the term of ‘Collective Bargaining’ System must be replaced with the right to make ‘Collective Labor Agreement’. But if it does not recognize the right to strike in the following article and states decision of the Arbitration Board is binding, it shall not change the status quo. The Proposal for changing the Article 53 of the Constitution is inadequate and makes it easily being misunderstood. Moreover, the ECHR converted the right to the collective bargaining of the public servants and other public officials to jurisprudence at the Case of Demir and Baykara vs Turkey. As the ECHR stated, in the Proposal must state the right to the collective bargaining clearly. Again, at the Case of Satılmış and Others vs Turkey and at the Urcan and Others vs. Turkey, the ECHR states that the public officials are right to apply for their right to mass strike through underwriting their Right to Strike.
There is no necessary change to the proposal for changing the last two subsections of the Article 53 related to the Arbitrary Board. To have a significant effect for the Proposal, it needs to change the Article 54 of the Constitution and states the Right to Strike of the public servants and other public officials and states to regulate how this right to be used in what ways in the Law.
The term of “Employees” were brought to the Article 51 by change. So, in terms of right to establish trade union it took further step. But the right to establish trade union exists within the freedom of association. Thus, right to establish trade union of people other than ‘employees’ must be guaranteed too. This must expand to “retired workers, farmers, unemployed people, students etc.” by redefining this right.
Additionally, regulating the rights to Collective Bargaining and to Strike shall become in accordance with the ILO Agreements and European Social Charter in terms of quality of work life.
4- The Proposal has shortcoming about changing the political party system. There should be no election threshold in terms of realizing the participatory democracy for the political parties. Thus, at first the election threshold must be declined fractionally to rational level (5%) by regulating it in the Constitution. Then, it must be officially declared to implement this regulation starting from the following election. Plus, utilization of treasury grants must be ensured regarding the rate and the number of representatives of political parties at the Parliament.
The most important closing reason for a political party is linked to the Constitution. This is totally ideological point of view. Thus, the measures not to close the political parties must be taken considering works of political parties in terms of pluralism, transparency and participation. In the Change Proposal for the Constitution procedural clauses are regulated, but not mentioned about the frameworks. The most important one is to eliminate system of closing political parties.
5- There is a positive step taken about establishing Constitutional security for ombudsman. On the other hand, the Constitutional guarantee must be also given to the International Human Rights Institution which is to be installed in accordance with the Paris Principles.
6- In the Proposal, only one of the Supreme Military Council’s decisions (‘to Discharge’) is opened to be remediable. We believe in all decisions of the SMC must be under the judicial control.
7- The Proposal must abolish the Military Jurisdiction totally and just preserve the Military Disciplinary Courts. It must end the Military Supreme Court of Appeal and Military Supreme Administrative Court.
8- By changing the frame of the Constitutional Court, the Proposal brings the system of electing its members: 3 members will be elected by the Parliament; 16 of them will be elected by the President. If we evaluate this system brought by the proposal, it becomes obvious that 10 members (the Council of the Higher Education Members are chosen by the President; so who they shall propose will be actually indirect selection of the President) will be chosen by the President. The Proposal cannot be acceptable as it is now. In accordance with the Principle of the Pluralism, the Constitutional Court members must contain only legal persons. The implementation of ‘Supreme Court’ jurisdiction system of the Constitutional Court must be abolished; this jurisdiction must be given to the ‘Supreme Court of Appeals’. Duration of the members of the Constitutional Courts must not be more than 10 years.
The Separation of Powers which is the base of establishment of the Constitutional Court must be taken into consideration. The selection of 16 out of 19 members chosen by the President is totally against the Principle of the Separation of Powers.
Bringing the right to ‘Individual Application’ to the Constitutional Court is an important development.
9- The SCJPP’s structure is planned to change by the Proposal. Current proposal is inadequate. The memberships of the Ministry of Justice and the Undersecretary at the SCJPP must be abolished. All the judges and public prosecutors from the Supreme Courts of Appeals, Council of State, Court of Accounts and the Union of the Bar Associations must be elected for the membership of the SCJPP. Thus, the balance of election of the members must be adjusted in accordance with the ‘Principle of Pluralism’.
10- The abolishment of the Article 15 of the Constitution by the Proposal is very important development. Yet, a new additional article must be added to the Proposal for controlling the laws decided by the Constitutional Courts during the period of temporary Article 15. Most of the laws made in this period are against the Constitution. In order to totally get rid of the spirit of 12 September, a new Constitution is a must. Plus, all the laws decided in that period must be controlled and checked.
Öztürk Türkdoğan
the President of the Human Rights Association (IHD)